The methodology being used to test the public mood on same-sex marriage is dividing both the Liberal Party and constitutional experts – and further diminishing the prime minister’s standing among his own.
By Karen Middleton
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The same-sex marriage postal vote

Prime Minister Malcolm Turnbull at a Parliament House press conference on Thursday.

Credit: AAP IMAGE / MICK TSIKAS

Earlier this year, after parliament rejected the government’s first attempt to hold a compulsory plebiscite on same-sex marriage, Queensland Liberal MP Warren Entsch went to see Prime Minister Malcolm Turnbull.

Entsch had not supported the plebiscite the previous leader Tony Abbott had proposed, accusing Abbott of devising it as “a way of kicking the can down the road”.

But having campaigned for change for more than a decade, he was desperate for some way of bringing it about. He suggested an alternative: a postal vote.

“I certainly raised it as a way forward, to try and get it finished,” Entsch told The Saturday Paper. “… I did that out of frustration.”

Now, he says, he wishes he hadn’t.

Entsch and four of his Liberal colleagues forced the issue back onto the agenda this week, hoping to achieve a free vote in parliament and threatening to force a vote on a private members’ bill.

But they acquiesced after a two-hour special meeting of Liberal MPs and senators on Monday, and a second meeting with the Nationals on Tuesday. The outcome was the government sticking with its election promise of a compulsory plebiscite and that it would ask parliament a second time to back it.

“My guess is the government actually hopes that it falls down in the High Court because that will save them a lot of trouble.”

If that failed – which it did in the senate on Wednesday – they resolved to move to an untried mechanism, a voluntary postal ballot at a cost of $122 million, not the $40 million of previous estimates, or the $170 million of a full compulsory plebiscite.

In announcing the postal ballot, which will begin on September 12 and close on November 15, without public funding for “yes” or “no” cases, Mathias Cormann likened it to the Whitlam government’s 1974 telephone poll of 60,000 voters on options for a new national anthem. That was conducted by the Australian Bureau of Statistics and this was to be, too.

Then prime minister Gough Whitlam used the 51.4 per cent support for abandoning “God Save the Queen” in favour of “Advance Australia Fair” to justify doing just that.

Three years later, the then Fraser government effectively rejected the phone poll’s legitimacy, reinstating “God Save the Queen” and then holding a compulsory plebiscite to test it against “Advance Australia Fair” and two other options: the popular ballad “Waltzing Matilda” and the lesser-known “Song of Australia”. Voters upheld the previous choice and “Advance Australia Fair” was restored.

Warren Entsch now worries the postal ballot will not have much credibility, especially if the turnout is low.

Regardless of turnout, Malcolm Turnbull has promised a “yes” result will herald a parliamentary vote by year’s end on whether to entrench same-sex marriage in law. But if the ballot rejects change, there won’t be a vote, and Turnbull says that will be the end of the matter.

No, says Entsch, it won’t.

He is vowing to proceed with his original plan, introducing Senator Dean Smith’s bill into parliament and bringing on an urgent debate and a vote – by forcibly suspending standing orders with the help of opposition parties if necessary. He says he has “every right to dissent”.

“If the answer’s ‘no’ I would be looking very closely at the process,” he says, convinced most Australians want change. “Either way, I want a vote.”

Entsch has asked the finance minister and acting special minister of state, Mathias Cormann, to ensure there is a mechanism to curtail the distribution of hateful material on either side of the debate. In asking the senate to back legislation for a compulsory plebiscite, Cormann said he hoped it could be “a unifying moment”.

In a passionate speech, an emotional Wong said the process would hurt people who, like her, are raising children in same-sex relationships.

“We know the sort of debate that is already there,” Wong said, calling for a parliamentary vote instead. “Let me say, for many children who are parented by same-sex couples and for many young LGBTI kids, this already ain’t a respectful debate.”

After the senate rejected the bill, the government commissioned a postal ballot – not conducted by the Australian Electoral Commission as expected but by the ABS. The government insists it can direct the ABS this way without asking parliament to endorse any legislation, using the power relating to “census and statistics” in section 51 of the constitution.

“We believe that the methodology is legal and constitutional,” Cormann told Coalition MPs on Tuesday.

Despite the assurances, doubts remain. It is not clear if the government sought legal advice on the ABS option or only on using the AEC. Constitutional experts point to the government’s avoidance of using the AEC as a possible sign there were legal concerns.

On Monday, the Human Rights Law Centre obtained a legal opinion from three constitutional lawyers – Kate Richardson, James Emmett and Surya Palaniappan – that said the government did not have the constitutional power to commission the AEC to conduct the poll without special legislation or regulation.

But the government’s alternative – and slightly stranger – ABS route is also raising questions.

Sydney University constitutional law professor Anne Twomey suggests there are still two obvious potential grounds for legal challenge.

The first is whether the ABS has the legal power to conduct the ballot. The bureau’s legislation directs it to undertake surveys and gather statistics and Twomey says it could be argued this survey would be seeking opinion rather than facts.

But she says there is a possible counterargument that this would be a survey to determine a statistic: the number of people who believe same-sex couples should be allowed to marry.

The second issue is whether the finance minister has the power to appropriate money to run the vote without special legislation. Cormann insists he does, under an existing provision that allows the minister to access up to $295 million for unexpected or unforeseen expenses.

But others query the viability of arguing the ballot is unforeseen.

“My guess is the government actually hopes that it falls down in the High Court because that will save them a lot of trouble,” Twomey says.

Legal challenges have already begun. Independent Tasmanian MP Andrew Wilkie and two other same-sex marriage advocates are bringing the first of them, advised by Ron Merkel, QC.

Those supporting a change in the law are divided over whether to encourage or discourage participation in the postal vote.

Former High Court judge and gay rights campaigner Michael Kirby is calling it a “completely ineffective” and “irregular” mechanism that disrespects the wishes of the parliament. “I think they should abandon it,” he told ABC Radio National on Thursday.

He said governments had not resorted to plebiscites when changing laws relating to the rights of women or Indigenous people but were now using something even less representative to determine the rights of gay Australians.

“This isn’t a plebiscite now,” Kirby said. “It’s a completely novel, voluntary, non-binding, non-compulsory vote of a few citizens and it’s just something we’ve never done in our constitutional arrangements of Australia and it’s unacceptable.”

Kirby said he would “not take any part in it whatsoever”.

Malcolm Turnbull urged voters not to follow Kirby’s example. “I encourage every Australian to exercise their right to vote on this matter,” he said.

Members of the group of MPs whose agitation put the issue back on the government agenda are also urging like-minded people to put any frustrations aside. “It’s really important that people participate and we all work to convince our fellow Australians that it’s time the law allowed everyone to participate in this important institution to demonstrate their love and commitment for each other,” Liberal MP Trent Zimmerman said.

He said a postal plebiscite was not his first choice and he still had “serious reservations about it”.

“It’s been a disappointing week because the parliament could have resolved this issue in a matter of days,” Zimmerman told The Saturday Paper. “I understand the issue of our election commitment to hold a plebiscite played heavily on the minds of our colleagues. I think most Australians just want this issue resolved quickly.”

Former prime minister Tony Abbott is framing the issue as being about something broader, appealing to people who might not have strong feelings against gay marriage but are disillusioned with governments and cultural change. Abbott now says the new push is part of “a war on our way of life”.

“If you don’t like same-sex marriage, vote no,” Abbott said after the Coalition fixed on its postal-vote course. “If you’re worried about religious freedom and freedom of speech, vote no. And if you don’t like political correctness, vote no, because voting no will help stop political correctness in its tracks.”

Zimmerman responded in a similar vein. “If you think that your brothers and sisters, your sons and daughters, your friends, your work colleagues and your neighbours should be able to share their love and commitment in the same way as every other Australian, then vote yes,” Zimmerman said. “If you believe that the government shouldn’t be able to tell you who you can and can’t marry, then vote yes. And if you want to help bring this country together so we can all move on from this issue, then vote yes.”

Publicly, Abbott endorsed the postal vote as a legitimate vehicle for testing the mood and congratulated Turnbull. But behind closed doors in the Liberals’ party room meeting on Monday, Abbott argued vehemently against the postal vote, insisting anything short of a full compulsory plebiscite amounted to a broken promise.

His position earnt a rebuke from Cormann, who responded that he had checked every public commitment both Abbott and his successor had made on a same-sex marriage plebiscite and nowhere had either specified the method.

The issue has become the latest vehicle for the tensions between conservatives and moderates – and Abbott and Turnbull. Leadership overtones are unavoidable.

Turnbull is hoping the plebiscite will put both the substantive and underlying issues to rest. But some moderate Liberals who support same-sex marriage were taken aback by the way Turnbull described it both in private and in public, when he complained it had detracted from his agenda and suggested he was too busy to campaign for change.

In seeking to broker a compromise, Turnbull may have diminished his own standing inside the Liberal Party.

And that means the underlying issue may not go away at all.

This article was first published in the print edition of The Saturday Paper on
Aug 12, 2017 as "Ballot boxing".
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